Deputy Mayor Thomas Baio seeks to invalidate a number of ballots
The outcome of a local election in a wealthy Republican-leaning town in Morris County continues to cause strife. Deputy Mayor Thomas Baio, a Republican, refused to concede to Democratic challenger Lauren Spirig after the November election for Mendham Township Committee.
Spirig is due to be sworn in on Jan. 5. But Baio, who was seeking a second term, filed a lawsuit seeking to invalidate the election and asking to be certified “as the winner of one three-year term on the Mendham Township Committee.” The suit questions the validity of 33 ballots by named voters for failing to meet the residency requirements for voting.
Spirig initially topped Baio by two votes in the Nov. 8 election, but in a Dec. 9 recount supervised by the State Superior Court, the Democrat gained one additional vote, ending with 1,473 votes to Baio’s 1,470.
At a public meeting held at the town’s Emergency Services Building on Dec. 20, some speakers demanded that Baio concede the race. Others, speaking in support of “election integrity,” defended Baio’s right to dispute the election result.
“I am a college student and I still vote in Mendham because this is my hometown and I’m allowed to do that. It’s not up to a single individual to say, well, ‘you are only here for six months in a year so you shouldn’t vote,” said Matthew Messina when defending his right to vote in the election.
A question of residency
Baio’s lawsuit is set to be heard on Jan. 19 before state Superior Court Judge Stuart A. Minkowitz in Morristown.
In a Dec. 16 interview with the Observer-Tribune, Baio said his own daughter, who voted in the township election, violated residency requirements. “Like many parents driven by a sense of duty, we were wrong to advance the VBM (vote-by-mail) to my daughter, Ariana,” he said. “My daughter did answer the call of duty and did vote by the mail-in ballot.” Baio, however, didn’t name his daughter in the lawsuit. She did not respond to an NJ Spotlight News request for comment.
Mail-in ballots flow as in-person voting begins“Tom’s daughter is a Democrat and voted the Democrat ticket,” Morris County Republican chair Laura Ali told the Observer-Tribune. Ali also called out the daughter of Morris County Democratic Chair Amalia Duarte as allegedly voting while ineligible. Duarte is also a member of Mendham Township Committee.
“My daughter is a legal voter of Mendham Township, absolutely,” Duarte, whose daughter currently lives in Knoxville, Tennessee, told The Daily Record. “This is right in line with all of the voter suppression that has been going on by the Republican Party across the country.”
Baio’s lawsuit is “very light on facts,” said David Becker, executive director and founder of the nonprofit Center for Election Innovation & Research. A former senior trial attorney in the voting section of the Department of Justice’s Civil Rights Division, he said, “The voter lists are all known publicly well in advance of the election. All of the campaigns have the voter lists. They have ample opportunity to challenge voters who are on the lists, who they don’t think reside there.”
No pre-election challenges
Morris County Clerk Ann Grossi said she has no knowledge of any challenge to the voter list before the election.
“Interestingly, this particular candidate seems to have had unique knowledge about the possibility that she (his daughter) might not have resided there, and there was no challenge made before the election,” Becker said.
“I’ve seen nothing that indicates (or) that would raise a red flag about whether or not (Tom Baio’s daughter) is a legal resident and able to vote there.”
“Residency laws vary by state, but usually they relate to intending to make a state your home and having a residence there in some ways,” Becker said. “Literally there are millions of people in the United States who are eligible to vote in more than one location, who can choose between those locations as to where they vote … residency requirements aren’t usually particularly strict.”
Becker said college students are a classic case when it comes to voting.
Scott Salmon, a partner with Jardim, Meisner & Susser, P.C. and chair of the firm’s election group, said regarding where they vote — “It’s where they, generally speaking, keep their toothbrush, where they keep their main set of clothes, where their driver’s license says that they live…”
According to New Jersey election law, “The registrant must be a U.S. citizen, at least 17 years old but cannot vote until reaching the age of 18 and will have resided in his/her county 30 days by the time of the election.” Students are advised on the New Jersey Voter Information Portal, “If you are in college, you have the option to register from your college address or your parent’s address. There are good reasons for registering and voting at either residence, but keep in mind, the final choice is yours.”
Risking not-so-secret ballot for NJ voters “A person can have multiple residences, but they only have one domicile, and your domicile doesn’t change until … you establish it somewhere else,” Salmon said. “You have to be a registered voter who lives in that area for at least 30 days before the election. Now you can go on vacation during those 30 days before the election … But the idea is that you’re not supposed to … move (to a new place) two weeks before Election Day and then vote.” Salmon is not representing either party in the suit.
Secret ballots are fundamental to the “nature of democracy,” said Henal Patel, law and policy director at the New Jersey Institute for Social Justice. But the 33 voters named in Baio’s lawsuit might be forced to reveal whom they voted for. “Ballots are secret, so there’s no way of knowing how these people voted and if this is (going) to impact the race … none of us should know how people voted,” Patel said.
“The judge will make a decision as to whether or not he thinks that their vote should be invalidated or not (based on residency laws, for instance),” Salmon said. “Basically, they will clear the courtroom except for the lawyers and the parties, and the judge will ask the voter, ‘Who did you vote for?’ And sometimes the voter doesn’t remember, in which case you can’t really knock off a vote.”
It’s difficult to overturn a person’s vote in New Jersey. Mainly because of the state’s strong voter rights laws, according to Salmon. “We don’t like disenfranchising voters. And it’s especially difficult to disenfranchise a voter when they’ve taken the effort not only to vote. Which can be hard enough as it is. But, they’ve also taken the effort to come into court, (and) in some cases produce documents,” he said.
Baio said “no comment” when asked for an interview by NJ Spotlight News.